Citation Nr: 1509599
Decision Date: 03/06/15 Archive Date: 03/17/15
DOCKET NO. 10-49 232 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania
THE ISSUES
1. Entitlement to an initial evaluation in excess of 10 percent for degenerative arthritis, right knee.
2. Entitlement to a compensable evaluation for residuals of a right knee injury with anterior cruciate ligament and meniscal tears.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L. Reeder, Associate Counsel
INTRODUCTION
The Veteran served on active duty from October 1988 to October 1998.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for degenerative arthritis of the right knee effective July 15, 2008 and denied entitlement to a compensable rating for the Veteran's service-connected residuals of a right knee injury with anterior cruciate ligament and meniscal tears.
A May 2010 rating decision awarded a temporary total rating from September 9, 2009 to November 1, 2009, with a return to the noncompensable rating from that date, for the Veteran's residuals of a right knee injury with anterior cruciate ligament and meniscal tears following his arthroscopic posterior medial meniscectomy. The Board notes that, as a 100 percent rating is the maximum payable, the period from September 9, 2009 through October 31, 2009 is not for consideration in this appeal.
In March 2011, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In August 2013, the Board remanded the Veteran's claim for further evidentiary development by the agency of original jurisdiction (AOJ).
As noted by the representative in the December 2013 appellate brief, the Appeals Management Center inexplicably and erroneously assigned a separate noncompensable rating under Diagnostic Code 5261, when the Veteran already
had a 10 percent rating for painful motion under Diagnostic Code 5010, which specifically contemplates the rating criteria under Diagnostic Code 5261. 38 C.F.R. §§ 4.71a, 4.14. Such matter is REFERRED to the RO for any appropriate corrective action deemed necessary.
FINDINGS OF FACT
1. Prior to July 2, 2009, the Veteran's right knee degenerative arthritis was manifested by flexion limited to no less than 95 degrees and extension to 5 degrees, with additional limitation of extension limited to 20 degrees after repetitive motion.
2. For the period from July 2, 2009 through September 8, 2009, the Veteran's right knee degenerative arthritis was manifested by flexion limited to no less than 95 degrees and extension limited to no more than 15 degrees.
3. For the period from November 1, 2009, the Veteran's right knee degenerative arthritis was manifested by flexion limited to no less than 90 degrees and extension limited to no more than 10 degrees, with objective evidence of pain and weakened movement, but no additional limitation of motion after repetition.
4. For the period of the claim prior to September 9, 2009, the Veteran's residuals of right knee injury with anterior cruciate ligament and meniscal tears was manifested by subjective complaints of his knee popping out on quick turns, with a 2009 MRI suspicious for small meniscal tears.
5. For the period from November 1, 2009, the Veteran's residuals of right knee injury with anterior cruciate ligament and meniscal tears have not been manifested by objective evidence of instability or subluxation.
CONCLUSIONS OF LAW
1. Prior to July 2, 2009, the criteria for a disability rating of 30 percent, but no higher, for the Veteran's right knee degenerative arthritis have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Codes 5010, 5260, 5261 (2014).
2. For the period from July 2, 2009 to September 8, 2009, the criteria for a disability rating of 20 percent, but no higher, for the Veteran's right knee degenerative arthritis have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5260, 5261 (2014).
3. For the period from November 1, 2009, the criteria for a disability rating in excess of 10 percent for the Veteran's right knee degenerative arthritis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5260, 5261 (2014).
4. For the period of the claim prior to September 9, 2009, the criteria for a disability rating of 10 percent, but no higher, for the Veteran's residuals of a right knee injury with anterior cruciate ligament and meniscal tears, have been more nearly approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5257 (2014).
5. From November 1, 2009, the criteria for a compensable disability rating for the Veteran's residuals of a right knee injury with anterior cruciate ligament and meniscal tears have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Veterans Claims Assistance Act of 2000
Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2014).
The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2014). Compliant VCAA notice was provided in August 2008.
Regarding the Veteran's claim of entitlement to a higher rating for right knee degenerative arthritis, such claim arises from his disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated and additional notice is not required. Thus, any defect in the notice regarding that claim is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).
The VA has also fulfilled its duty to assist. In this case, the VA obtained service treatment records, post-service treatment records, and VA examination reports.
The Veteran was also afforded a hearing before the undersigned VLJ. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the officer who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the VLJ identified the issues to the Veteran, who testified as to the symptoms of his condition and their effects, as well as his treatment
history. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the hearing. The hearing focused on the elements necessary to substantiate the claims, and the Veteran provided testimony relevant to those elements. As such, the Board finds that no further action pursuant to Bryant is necessary, and the Veteran is not prejudiced by a decision at this time.
The Board also notes that the actions requested in the August 2013 remand have been undertaken. Additional treatment records were obtained, the Veteran was afforded an additional VA knee examination, and he and his representative were subsequently furnished with a Supplemental State of the Case. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)).
As discussed above, the Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was provided with a meaningful opportunity to participate in the claims process, and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, 19 Vet. App. 473.
II. Analysis
The Veteran was initially granted service connection for residuals of a right knee injury with anterior cruciate ligament and meniscal tears (hereinafter "right knee injury residuals") in April 2001 under Diagnostic Code 5257, and a noncompensable rating was assigned. In 2008, the Veteran filed an increased rating claim for that condition, and, in a December 2008 rating decision, the RO continued the Veteran's noncompensable rating for his right knee injury residuals and granted a separate, 10 percent rating for degenerative arthritis, right knee (hereinafter "right knee arthritis"). The Veteran subsequently appealed both ratings. As previously noted, the period under review is exclusive of an already established temporary total rating from September 9, 2009 through October 31, 2009 for surgical convalescence.
Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history; reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).
Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2014); see also 38 C.F.R. §§ 4.45, 4.59 (2014). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011).
Under Diagnostic Code 5010, traumatic arthritis, substantiated by X-ray findings, should be rated as degenerative arthritis, which is rated based on the limitation of motion under the appropriate Diagnostic Code for the specific joint involved, or in this case, Diagnostic Code 5260 for limitation of leg flexion or Diagnostic Code 5261 for limitation of leg extension. 38 C.F.R. § 4.71a, Diagnostic Code 5003.
Under Diagnostic Code 5257, slight recurrent subluxation or lateral instability warrants a 10 percent rating, moderate recurrent subluxation or lateral instability warrants a 20 percent rating, and severe recurrent subluxation or lateral instability warrants a 30 percent rating. 38 C.F.R. § 4.71a.
The words "slight," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6 (2014).
Under Diagnostic Code 5260, limitation of flexion of the leg to 15 degrees warrants a 30 percent rating; limitation to 30 degrees warrants a 20 percent rating; limitation to 45 degrees warrants a 10 percent rating; and limitation to 60 degrees warrants a noncompensable, or 0 percent, rating. 38 C.F.R. § 4.71a.
Under Diagnostic Code 5261, limitation of extension of the leg to 45 degrees warrants a 50 percent rating; limitation to 30 degrees warrants a 40 percent rating; limitation to 20 degrees warrants a 30 percent rating; limitation to 15 degrees warrants a 20 percent rating; limitation to 10 degrees warrants a 10 percent rating; and limitation to 5 degrees warrants a noncompensable rating. 38 C.F.R. § 4.71a.
Normal range of motion for the knee is 0 degrees in extension and 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II.
Precedent opinions of the VA's General Counsel have held that dual ratings may be given for a knee disorder, with one rating for instability (Diagnostic Code 5257) and one rating for arthritis with limitation of motion (Diagnostic Codes 5003 and 5010). VAOPGCPREC 9-98 and 23-97. Another such opinion held that separate ratings under Diagnostic Code 5260 (leg, limitation of flexion) and Diagnostic Code 5261 (leg, limitation of extension) may be assigned for disability of the same joint. VAOPGCPREC 9-2004, 69 Fed. Reg. 59988 (2004).
The Board has reviewed and considered all of the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all of the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). When there is an approximate balance of evidence for and against an issue, all reasonable doubt
will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
The Veteran was first afforded a VA examination in connection with his increased rating claim in September 2008. At that time he reported pain with prolonged walking, and stated that if he made quick turns his knee popped and went out of place. He also reported recurrent subluxation. The examiner noted that the Veteran walked with a limp, favoring his right lower extremity. Upon physical examination, the examiner noted mild soft tissue swelling in the right knee, as well as tenderness with palpation and pain with varus stress. The examiner stated there was no instability on anterior, posterior, or medial/lateral stress maneuvers. He stated that the Veteran's best resting posture was at 5 degrees of extension. Further range of motion (ROM) testing revealed flexion limited to 95 degrees and extension to 5 degrees. After repetition, flexion to 95 degrees and extension to 20 degrees, as well as locking and pain, were noted. X-ray imaging revealed previous ligament repair, but no acute fracture, joint effusion, or significant soft tissue abnormalities. Minimal osteoarthritis was noted, and the examiner diagnosed the Veteran with degenerative arthritis and anterior cruciate ligament (ACL) rupture and meniscal tear, status post surgery in January 2002.
An MRI study of the Veteran's right knee was conducted by VA in April 2009, and revealed no significant joint effusion and intact medial and lateral collateral ligamentous complexes. The radiologist noted that the Veteran's prior ACL graft was intact. However, he stated that the study was suspicious for small meniscus tears.
In July 2009, the Veteran sought VA treatment for right knee pain. Upon physical examination, the examiner noted atrophy in the Veteran's right quadriceps. He documented right knee extension to 15 degrees and flexion to 95 degrees. He stated the Veteran was fairly stable to anterior and posterior varus and valgus stress. He noted the Veteran had some pain with McMurray testing, but no audible or palpable click. However, he stated that the examination findings were suspicious for medial and lateral meniscal tears.
In early September 2009, the Veteran reported excruciating right knee pain to a private physician. The Veteran denied instability at that time. Physical examination revealed that the Veteran was lacking a terminal 7 to 8 degrees of extension. Flexion to 100 degrees was also noted, and the physician reported that the Veteran's knee was stable. Based on his discussion with the physician, the Veteran elected to proceed with a right knee arthroscopy. Later that month, after the arthroscopy, the physician reported the Veteran had full extension, and flexion to 120 degrees. In October 2009 and June 2010, the physician noted full ROM of the right knee.
During his March 2011 hearing, the Veteran described continuing knee pain and stiffness, and indicated that his knee would pop out of place if he turned quickly or ascended or descended stairs. He also stated that his knee occasionally swelled or gave out, and that standing up from a squatting position was painful. He reported that his flare-ups could last anywhere from a day to a week. The Veteran stated that after he returned from work he did not leave the house, and that he sometimes slept downstairs due to his knee condition. He also indicated that his knee condition interfered with his ability to participate in activities with his children.
During a November 2011 examination conducted by VA to determine the appropriateness of a knee brace, the Veteran demonstrated right knee extension to 10 degrees and flexion to 95 degrees. He reported pain and instability, but the examiner found no instability upon physical examination. The examiner noted crepitus in the Veteran's right knee. He also stated that MRI studies conducted in 2009 and 2011 showed no significant ligamentous disruption aside from evidence of a prior, relatively intact ACL reconstruction. In December 2011, in connection with an appointment for a right knee injection after continued reports of pain, a private physician reported "normal" range of motion of the Veteran's right knee, with no swelling or edema, no tenderness to palpation or warmth, and normal strength and tone. Similar findings were reported in August 2012.
In October 2013, the Veteran was afforded another VA knee examination. He reported flare-ups of knee pain with prolonged walking, but denied additional limitation of motion during those episodes. Upon physical examination, the examiner noted right knee flexion to 90 degrees and extension to 5 degrees, with pain beginning at those endpoints. No additional limitation of motion occurred on repetition. The examiner reported functional loss in the Veteran's right knee in the form of weakened movement and pain on movement, but stated that there was no additional pain, fatigue, weakness, lack of endurance, or incoordination with repetitive motion or use. Strength testing on flexion and extension was 4 out of 5. All stability tests were normal, and the examiner stated there was no evidence or history of recurrent patellar subluxation or dislocation. The examiner noted the Veteran's prior meniscus tears, but indicated there were no residual signs or symptoms due to a meniscectomy. However, residual pain due to the Veteran's arthroscopy was noted.
After review of the evidence of record, the Board concludes that for the period prior to July 2, 2009, the Veteran is entitled to a rating of 30 percent, but no higher, for his right knee degenerative arthritis. For the period from July 2, 2009 to September 9, 2009, he is entitled to a rating of 20 percent, but no higher, for the right knee arthritis. However, the Board also finds that, for the period from November 1, 2009, the Veteran is not entitled to a rating in excess of 10 percent for his right knee arthritis. Moreover, the Board finds that a 10 percent rating for his separately rated residuals of a right knee injury with anterior cruciate ligament and meniscal tears is warranted from the period of the claim until September 9, 2009, with a return to a noncompensable rating November 1, 2009, following his period of convalescence.
Specifically, the Veteran's extension to only 20 degrees after repetition during the 2008 VA examination warrants a 30 percent rating under Diagnostic Code 5010-5261 from the beginning of the claim period until July 1, 2009. However, as the Veteran demonstrated extension to 15 degrees on July 2, 2009 and to 7 or 8 degrees immediately prior to his arthroscopy in September 2009, the Board finds that, affording him the benefit of the doubt, he is entitled to a 20 percent rating from July 2, 2009 until initiation of the temporary total rating associated with his surgery on September 9, 2009.
However, to the extent the Veteran believes he is entitled to ratings for his degenerative arthritis in excess of those being assigned herein or presently assigned, the medical findings of record are of greater probative value than the lay assertions of record regarding the severity of his disability. Those findings indicate that the criteria for applicable additional or higher evaluations are not met.
At no point prior to the Veteran's September 2009 surgery was right knee extension limited to more than 20 degrees prior to July 2, 2009, or in excess of 15 degrees from that date until his surgery. After surgery, his extension was, at most, limited to 10 degrees. Moreover, at no point during the time period under review has right knee flexion been limited to a compensable degree. And, although the Veteran has reported pain and stiffness in his right knee, aside from the limitation in extension noted during the 2008 examination and accounted for by a 30 percent rating, the medical evidence of record does not reflect any additional limitation of motion in response to repetitive motion that would support a higher rating under Diagnostic Codes 5260 or 5261 during any other time period, even considering the Veteran's subjective complaints. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2014); DeLuca, 8 Vet. App. 202 (1995); Mitchell, 25 Vet. App. 32. Based on the foregoing, separate ratings, or ratings higher than those the Board is now assigning, under Diagnostic Codes 5260 and 5261, are not warranted. See VAOPGCPREC 9-2004.
Regarding the propriety of a higher rating for the Veteran's right knee injury residuals under Diagnostic Code 5257 for the period prior to September 9, 2009, the Veteran complained of his knee popping out when turning quickly. Although at no time during the period under review has instability or recurrent subluxation been objectively identified, MRI in 2009 and clinical evaluation in April 2009 were considered by the examiners to be suggestive of meniscal tears, ultimately resulting in the Veteran's surgery. Accordingly, resolving all doubt in the Veteran's favor, the Board finds that a 10 percent rating is more nearly approximated under Diagnostic Code 5257 for the period of the claim prior to September 9, 2009. Following the period of convalescence for his surgery, while the Veteran continues to report subjective complaints of instability or subluxation, there is no objective evidence of such. A 2011 MRI has been interpreted as showing no significant ligamentous disruption aside from evidence of a prior, relatively intact ACL reconstruction been. During the 2013 VA examination, all stability tests were normal, and the examiner stated there was no evidence of recurrent patellar subluxation or dislocation. The examiner noted the Veteran's prior meniscus tears, but indicated there were no residual signs or symptoms due to a meniscectomy. Accordingly, a compensable rating under that Diagnostic Code 5257 is not warranted for the post-convalescent period beginning November 1, 2009.
The Board has also considered whether evaluation of his disability under a different diagnostic code would be more advantageous. However, Diagnostic Code 5259 contemplates limitation of motion, thus it would be pyramiding to rate the Veteran's right knee injury residuals under those codes. See VAOPGCPREC 9-98, 38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided). With respect to Diagnostic Code 5258, at no time has the evidence revealed dislocated semilunar cartilage; thus a rating under that code is not warranted. Additionally, the evidence of record does not show that the Veteran has ankylosis, nonunion or malunion of the tibia or fibula, or genu recurvatum, so Diagnostic Codes 5256, 5262, and 5263 are not for application.
The Board has considered the Veteran's statements, as well as the other lay statements of record, regarding the difficulty the Veteran experiences standing, walking, climbing stairs, and rising from a squatting position, as well as his subjective symptoms, including pain, swelling, popping, stiffness, giving way, and instability, when determining what disability ratings are appropriate. However, as previously noted, the Board concludes that the medical findings on examination are of greater probative value than those lay assertions, and finds that the various ratings it has assigned for arthritis during the period under review adequately address the right knee symptomatology.
The Board has also considered whether referral for extraschedular consideration is warranted for the time period on appeal. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).
Here, the rating criteria, with consideration of 38 C.F.R. §§ 4.40, 4.45, and 4.59, reasonably describe the Veteran's objective disability level and subjective symptoms, and provide for additional or more severe symptoms than currently shown by the evidence. For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell, 25 Vet. App. at 37. For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, supra. In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss. Given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008).
The Board further notes that, during the period under review, the Veteran has not been frequently hospitalized for his service-connected knee disabilities, and there is no indication that the Veteran's knee disability has caused marked interference with his current employment. The Board notes the Veteran was assigned a total rating for his period of convalescence following surgery. Thus, even if the rating criteria were found inadequate, the evidence does not reflect exceptional or unusual factors that would warrant referral of the claim for extraschedular consideration.
In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine, but, to the extent the Veteran's claim was denied, finds the preponderance of the evidence is against ratings higher than those assigned. See 38 U.S.C.A. § 5107 (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).
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ORDER
For the period prior to July 2, 2009 a disability evaluation of 30 percent, but no higher, for right knee degenerative arthritis is granted, subject to the rules and regulations governing the payment of VA monetary benefits.
For the period from July 2, 2009 to September 9, 2009, a disability evaluation of 20 percent, but no higher, for right knee degenerative arthritis is granted, subject to the rules and regulations governing the payment of VA monetary benefits.
For the period from November 1, 2009, a disability rating in excess of 10 percent for right knee degenerative arthritis is denied.
For the period of the claim prior to September 9, 2009, a disability evaluation of 10 percent, but no higher, for residuals of a right knee injury with anterior cruciate ligament and meniscal tears is granted, subject to the rules and regulations governing the payment of VA monetary benefits.
For the period from November 1, 2009, a compensable disability rating for residuals of a right knee injury with anterior cruciate ligament and meniscal tears is denied.
______________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs